Victim Not Remedy-Less Against Police Inaction - Can Apply To Competent Magistrate, File Complaint U/S 166A(b) IPC Against IO, Even Move HC : P & H HC [Read Order]

The Punjab and Haryana High Court has reassured that the complainant/victim of a crime is not remedy-less against deliberate inaction, unreasonable delay, failure to collect evidence, undue sympathy with/shielding of the offenders by the concerned Police Officers.

Justice Arun Kumar Tyagi was hearing anticipatory bail pleas in connection with FIR registered under Sections 354-D, 503, 509, 384 and 511 of the IPC and Sections 66D, 67 and 67A of the Information Technology Act, 2000.

Noting that the police is expected to take prompt action for registration of FIR and investigation of the case where complaint discloses commission of cognizable offence, Justice Tyagi observed that in the present case there was unreasonable delay in registration of FIR as well as investigation of the case "which warrants interference by this Court in exercise of its inherent jurisdiction".

The Single Judge recorded that written complaints had been submitted by the two victim-girls, one alleging harassment/extortion by the petitioner and his accomplice by creating whatsapp group, initially admitting her in the same and subsequently making her group admin, sending objectionable, vulgar messages, forged, fabricated morphed photographs on whatsapp and making unwanted voice and video calls on her mobile phone, and the other alleging that by creating fake Ids of the complainant on Facebook, Snapchat and Instagram, the accused posted objectionable photographs and defamatory messages to pressurize the complainant to get into physical relations with him.

"The written complaints disclosed commission of cognizable offences but the Police, instead of registering the FIR proceeded to conduct preliminary inquiries regarding the allegations made in the said complaints. As per law laid down by Hon'ble Supreme Court in Lalita Kumari Vs. Government of U.P. (2014) 2 SCC 1 such preliminary inquiry could be made only to ascertain whether the complaint disclosed commission of cognizable offences and was required to be completed within fourty five days", rebuked the Single Bench.

Observing that the preliminary inquiry was conducted by making an "investigation" in "mini trial mode" by "joining the complainant, accused and witnesses", the bench remarked that FIRs were registered over 3 months later on the basis of preliminary inquiry report. "Further, even after registration of the FIRs, the matter was pending for investigation and nothing substantial appeared to have been done to collect the further evidence and conclude the investigation despite expiry of more than six months", said the bench, expressing surprise that even the mobile phone handsets allegedly used for commission of the alleged offences have not been seized by the Police.

The Single Judge iterated that on registration of FIR, the officer in charge of the police station is mandatorily required under Section 157 (1) of the Cr.P.C. to forthwith send a copy of the same to the Magistrate empowered to take cognizance of such offence upon a police report and proceed in person or depute one of his subordinate officers, not below such rank as the State Government by general or special order prescribes in this behalf, to proceed to the spot, to investigate the facts and circumstances of the case and if necessary to take measures for the discovery and arrest of the offender.

"In this land of ancient civilization and rich culture governed by fundamental principle that no society can prosper without respect for women expressed by sanskrit shalok 'Yatra naryastu pujyante ramante tatra Devata' women are now victims of heinous crimes and subjected to domestic violence, cruelty/maltreatment and sexual harassment and due to these evils, need effective protection of law administered by all agencies of State with an iron hand", stressed the bench.

The bench appreciated that Unwanted intrusion into privacy of a woman by sending vulgar/objectionable/obscene messages, photographs and making unwanted voice and video calls to her and others and thereby subjecting her to harassment and defamation prompted the legislature to enact the provisions for punishment of voyeurism and stalking (Sections 354-C and 354-D of the IPC) and publishing or transmitting obscene material and publishing or transmitting material containing sexually explicit act etc. (Sections 67 and 67A of the IT Act) besides others.

The bench declared that the police is expected to adopt a sensitive approach and take prompt action for expeditious investigation of such cases.

"Although there is no specific provision in the Cr.P.C. mandatorily specifying the time limits for completion of investigation yet Section 173 (1) of the Cr.P.C. mandates that every investigation under Chapter 12-INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE shall be completed without unnecessary delay", noted the bench.

The bench further acknowledged that the Legislature's concern and mandate for expeditious completion of investigation is manifested by the provisions made in section 167 (2) of the Cr.P.C. for grant of default bail in case of non completion of investigation in 90 days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years and 60 days where the investigation relates to any other offence and section 167 (5) of the the Cr.P.C. for stopping of investigation in summons cases where investigation is not completed within six months.

The bench reflected that the Law commission in its 239th report recommended that if investigation in respect of serious crimes i.e. cognizable and punishable with imprisonment of 5 years or more is not completed within 6 months, SHO shall submit a report to SP/SSP who shall take necessary action to ensure completion of investigation.

"It follows that investigation has to be fair, prompt, transparent and judicious to both the victim as well as the accused. Ineffective, unfair, obscure, inexpedient and delayed investigation negates and is the antithesis of the rule of law affirmed by Article 21 of the Constitution of India", concluded the bench.

The bench asserted that the complainant/victim of a crime may accordingly apply to the Judicial Magistrate, empowered to take cognizance of the offences in question on police report, for monitoring of investigation who can issue appropriate directions for expeditious completion of investigation. The complainant/victim of a crime may also file complaint under section 166A (b) of the IPC against the Investigating Officer for knowingly disobeying any direction of the law regulating the manner in which he shall conduct such investigation. "In view of explanation to Section 197 (1) of the Cr.P.C. no sanction is required in case of a public servant accused of any offence alleged to have been committed under Section 166 A of the IPC", clarified the bench.

The bench further explained that the complainant/victim of a crime may alternatively file a petition in the High Court for transfer of investigation to an independent agency such as CBI etc.

"However, it may be observed here that in a substantial number of such cases the complainant/victim of a crime is not able to pursue these remedies due to lack of awareness and legal aid at the initial stages", noted the bench.

Justice Tyagi expounded that under Section 12 (c) of the Legal Services Authorities Act, 1987, a woman victim of a crime is entitled to legal aid at State expenses and the State Legal Services Authority and District Legal Service Authority are under an obligation to provide legal aid to a woman victim of a crime at all stages of investigation and trial.

Noting that a woman victim of a crime may not be aware about availability of legal aid to apply for the same, the bench required the State Legal Service Authority, Punjab to devise suitable scheme/mechanism for this purpose by providing for giving of information regarding registration of FIR at the instance of woman victim of a crime by the police or the concerned Judicial Magistrate to the State Legal Service Authority/District Legal Service Authority, informing woman victim of a crime about availability of legal aid and providing such legal aid (if so applied for by a woman victim of a crime) by the State Legal Service Authority/District Legal Service Authority for redressal of her grievances by appropriate consultation, filing of appropriate proceedings before appropriate forum/authority and legal representation before the Court.

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